Aboriginal Customary Adoptions Injected into Quebec Civil Code

Quebec’s National Assembly has legislated to recognize customary adoptions, acknowledging Aboriginal authority over certain aspect of family law and injecting a hint of legal pluralism into the Civil Code of Quebec.

Bill 113 was adopted unanimously by the Quebec National Assembly last Friday, amending both the Civil Code and the Youth Protection Act.

Civil Code article 543 previously stated that “No adoption may take place except in the interest of the child and on the conditions prescribed by law” but Bill 113 creates a new basis for adoption: “Conditions of adoption under any Québec Aboriginal custom that is in harmony with the principles of the interest of the child, respect for the child’s rights and the consent of the persons concerned may be substituted for conditions prescribed by law.”

Expanding authority beyond the courts, the new article 543.1 delegates the power to declare adoptions to “the authority that is competent for the Aboriginal community or nation of either the child or the adopter”. The article gives the competent authority power to issue “a certificate attesting the adoption after making sure that it was carried out according to custom, in particular that the required consents were duly given and that the child is in the care of the adopter; the authority also makes sure, in light of an objective appraisal, that the adoption is in the interest of the child.”

Customary adoptions are a common practice in numerous Aboriginal communities across Quebec, whereby parents entrust their child—often in times of hardship—to other community members for care. Conditions and durations of adoptions vary from one nation to another. The 2012 Report of the Working Group on Customary Adoption in Aboriginal communities stated that “the past actions of various authorities have certainly not facilitated the development of customary adoption. However, its survival clearly demonstrates its resilience. Furthermore, it is a concrete contemporary expression of the uniqueness of Aboriginal cultures.”

Aboriginal leadership in Quebec is voicing its approval for the legal changes and some are looking at the move as a recognition of inherent Aboriginal legal jurisdiction. “With the adoption of Bill 113, the Quebec government is living up to the commitment it made so many years ago. We are pleased to see the years of hard work and collaborative efforts with Quebec by the Cree and other Indigenous groups resulting in these changes to the Civil Code and other legislation,” said Dr. Matthew Coon Come, Grand Chief of the Grand Council of the Crees (Eeyou Istchee).

“Issues affecting families and children lie at the heart of Aboriginal and treaty rights and self-government as protected in particular by section 35 of the Constitution Act and by international law,” added Ghislain Picard, Chief of the Assembly of First Nations Quebec-Labrador.

Picard’s words echo the 2012 Report which was foundational for the National Assembly’s Bill 113: “for First Nations, customary law jurisdiction and rights regarding matters such as adoption are also part of historic treaties in Québec, and are therefore further protected under section 35.”

The bill also recognizes Aboriginal customary adoptions where “a pre-existing bond of filiation may also, according to custom, allow rights and obligations to subsist between the adoptee and his or her family of origin.” Through the legislative committee report stage, the National Assembly arrived at an amendment to allow for temporary aboriginal customary adoptions, rather than just permanent ones.

The bill changes other articles and provisions of Civil Code and the Youth Protection Act not specific to Aboriginal adoption; it undoes requirements around adoption secrecy and reworks the rules governing the adoption of children domiciled outside Quebec.

This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.